Whatever the ultimate fate of Judge Kavanaugh’s nomination, events of the past few weeks have forced women to relive the most painful, horrific events of their lives. The brave women who have come forward to tell their stories have had their lives turned upside down. They have been mocked by the nation’s top leaders, driven into hiding by death threats, and subjected to horrific internet smears. At the same time, however, millions of women around the country who have experienced sexual violence are being reminded both of the assaults and of the scorn and disbelief heaped on those that object.
In any sane world, we would be coming together to protect high school and college students from having their educations and their lives torn apart by sexual violence. Instead, bizarrely, the Trump Administration is reinforcing a culture of impunity. Last year, Education Secretary Betsy DeVos rescinded Obama-era policy on campus sexual violence as her civil rights chief trivialized sexual assault. Now the Office of Management and Budget is reviewing proposed Education Department rules that would dramatically reduce colleges’ accountability for combatting sexual violence.{mosads}
A recurrent issue is whether colleges should act against assailants just as they act against students committing other misconduct. When students are accused of stealing books from the campus library, they could be charged with criminal theft but seldom are. In those rare cases where they do face criminal charges, they enjoy all the protections our system affords to those at risk of going to jail: trial by jury, the right to counsel, the right to prevail if the prosecution cannot prove its case beyond a reasonable doubt, and so on.
In the more typical case, the university commences an internal disciplinary proceeding against the student. Because the stakes are much lower – no jail time, no criminal record – the procedural standards are less exacting. The Supreme Court has long maintained that what process is due depends on the individual interest at stake. Just because stealing a book is a crime, the accused is not entitled to all the protections of a criminal trial if nobody is trying to impose criminal penalties. The school can expel the student if the accusation is proven by a preponderance of the evidence – if it is more likely than not that the student stole the book.
Critics of the rescinded policy are arguing, in effect, that we should treat rape as a less serious offense than pilfering library books. Rather than expressing relief at avoiding prosecution for a major felony, offenders seek to avoid any consequences at all.
The fact-finding process should not compound already-serious injuries. When a surgeon is accused of malpractice, we do not open up the patient again to gather evidence: That would only compound the injury. Similarly, rapists should not be permitted to re-traumatize survivors during disciplinary hearings. Even in criminal prosecutions, where long jail terms are at stake, rape shield laws sharply limit destructive cross-examination of survivors. Allowing accused rapists to cross-examine their victims in campus disciplinary proceedings is likely to punish, and deter, honest rape reports. Relevant questions need to be asked, but having the accused submit them to the presiding officer, who can screen out taunting or abusive ones, is perfectly adequate.
Fundamentally, colleges should treat sexual violence as the threat to women’s educational opportunity that it is. Once a sexual assault occurs between students, one or the other often will leave school and have her or his education interrupted. Merely seeing the assailant around campus often will be enough to re-traumatize survivors, reminding them that the campus is an unsafe place. But often much more is involved. Rape, after all, is about exercising power over another human being. And many rapists are unwilling to stop at the assault, winking at and taunting their victims repeatedly.
In effect, then, the question in disciplinary proceedings is which of the two students will have to leave. The natural thing to do, and what is done in other disciplinary cases, is to make the best possible determination of what probably happened and decide accordingly. Those advocating higher standards of proof for sexual assault cases are effectively saying that, even when the evidence shows that a student likely assaulted a classmate, he should be allowed to remain and drive her to drop out. Some will rape again.
What of the repeated complaints that campus disciplinary proceedings are unfair “witch hunts”? With all we are learning about how easily Russian hackers and bots spread disinformation during the last election campaign, we should be cautious about believing reports just because we hear them a lot. Students accused of sexual assault often retain lawyers to defend them and discredit the proceedings against them. Survivors of sexual assaults generally do not: For them, the damage has already been done. And educational privacy laws prevent schools from defending themselves effectively. So we have largely heard just one side of the story.
Whatever the facts behind the particular anecdotes, copious research shows that we are not facing an epidemic of false rape reports. The vast majority of sexual assaults still go unreported. And of those reports that are made, studies have found only a tiny fraction – between 2 percent and 8 percent – are unfounded. Serious, thoughtful inquiries are needed to protect the small minority of innocent accused students, but we should not lose sight of the true epidemic, which is campus sexual assault.
The Administration should abandon its proposed rules on campus sexual violence and reinstate the prior guidance. If it will not, Congress should step in.
David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.